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 FOIL-AO-13386

 

June 13, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear

I have received your letter of May 4 and the materials attached to it. You have sought
assistance in obtaining certain records from the Town of Greenburgh. Specifically, you sought the
"chemical hazard and inventory data" and a "site specific emergency response plan" relating to the
Knollwood Road pump station. The Town denied access due to "elevated concerns for infrastructure
security."

In this regard, I offer the following comments.

First, §89(6) of the Freedom of Information Law provides that when records are available as
of right pursuant to a different law, nothing in the Freedom of Information Law can be asserted as
a means of denying access. Therefore, if, for example, a federal law specifies that certain records
must be made available to the public, I do not believe that the Freedom of Information Law would
diminish or alter any such right.

Second, when the Freedom of Information Law governs rights of access, that statute is based
upon a presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial appearing in
§87(2)(a) through (i) of the Law. It is emphasized that §87(2) refers to an agency's authority to
withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase
quoted in the preceding sentence indicates that a single record or report may include portions that
must be disclosed, as well as portions that may be withheld. Further, it imposes an obligation on an
agency to review requested records in their entirety to determine which portions, if any, may
justifiably be withheld.

Assuming that there is no statute that specifies that the records in question must be disclosed,
it is likely that the provision of greatest significance in ascertaining rights of access and the Town's
ability to deny access is §87(2)(f). That provision permits an agency to withhold records or portions
thereof which if disclosed "would endanger the life or safety of any person." Although an agency
has the burden of defending secrecy and demonstrating that records that have been withheld clearly
fall within the scope of one or more of the grounds for denial [see §89(4)(b)], in the case of the
assertion of that provision, the standard developed by the courts is somewhat less stringent. In citing
§87(2)(f), it has been found that:

"This provision of the statute permits nondisclosure of information if
it would pose a danger to the life or safety of any person. We reject
petitioner's assertion that respondents are required to prove that a
danger to a person's life or safety will occur if the information is
made public (see, Matter of Nalo v. Sullivan, 125 AD2d 311, 312, lv
denied 69 NY2d 612). Rather, there need only be a possibility that
such information would endanger the lives or safety of
individuals...."[emphasis mine; Stronza v. Hoke, 148 AD2d 900,901
(1989)].

The principle enunciated in Stronza has appeared in several other decisions [see Ruberti,
Girvin & Ferlazzo v. NYS Divsion of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996),
Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991), Fournier v. Fisk, 83 AD2d
979 (1981) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4,
1994], and it was determined in American Broadcasting Companies, Inc. v. Siebert that when
disclosure would "expose applicants and their families to danger to life or safety", §87(2)(f) may
properly be asserted [442 NYS2d 855, 859 (1981)]. Also notable is the holding by the Appellate
Division in Flowers v. Sullivan [149 AD2d 287, 545 NYS2d 289 (1989)] in which it was held that
"the information sought to be disclosed, namely, specifications and other data relating to the
electrical and security transmission systems of Sing Sing Correctional Facility, falls within one of
the exceptions" (id., 295). In citing §87(2)(f), the Court stated that:

"It seems clear that disclosure of details regarding the electrical,
security and transmission systems of Sing Sing Correctional Facility
might impair the effectiveness of these systems and compromise the
safe and successful operation of the prison. These risks are magnified
when we consider the fact that disclosure is sought by inmates.
Suppression of the documentation sought by the petitioners, to the
extent that it exists, was, therefore, consonant with the statutory
exemption which shelters from disclosure information which could
endanger the life or safety of another" (id.).

In short, although §87(2)(f) refers to disclosure that would endanger life or safety, the courts
have clearly indicated that "would" means "could."

This is not to suggest that the records sought may necessarily be withheld in their entirety.
There may be elements of the records which if disclosed would enhance or improve public safety
and diminish danger. For instance, they may indicate that tainted water should be boiled or that
certain actions should be taken in the event that substances are inhaled or come in contact with
people or objects. Information of that nature must in my opinion be disclosed. On the other hand,
insofar as disclosure would enable terrorists to evade detection or effective law enforcement or
potentially enable them to jeopardize lives and safety, the records may in my view be withheld
pursuant to §87(2)(f).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Board
Town Clerk